How Confucianism Asserts Itself in Modern ADR Development in East Asia: A Revisit

Abstract

Arbitration, as well as mediation, is one of the conventional yet modern means for resolving civil and commercial disputes in Asia, where Confucianism has held sway for thousands of years. Confucianism has exerted a pervasive influence over the Chinese traditions of informal settlement of private disputes by establishing norms of conduct through Guanxi (關係 relationships or personal connections) and social hierarchies. Zhongcai (仲裁) has been adopted as arbitration’s modern name in Chinese, and the more conventional term is Gongduan (剬斷). Gongduan (剬斷) and arbitration are alike mostly because they are both means to resolve civil disputes, while fundamental distinctions still exist such as the requirement of consent of the parties and the scope of the subject matter to be resolved. Although the Western idea of international arbitration has taken root in Chinese societies, modern arbitration is still influenced by the tradition, making arbitrators act as mediators and Guanxi (關係) important in appointment of arbitrators.